UNCHARTERED TERRITORY – HOW TO DEAL WITH EMPLOYEES WITH MEDICAL MARIJUANA CARDS
By Thomas E. Weiers, Jr. Esq. – Legal Counsel to the Western PA Chapter
Since Pennsylvania enacted the Medical Marijuana Act (“MMA”) employers have grappled with how to deal with issues involving employees who are legally prescribed doses of marijuana for medical reasons. Issues arise as to how to enforce a company’s substance abuse policies when an applicant or employee with a medical marijuana card tests positive for marijuana. Some things are clear from the MMA and others are not.
Employer Requirements . The MMA makes it unlawful for an employer to:
“… discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee's compensation, terms, conditions, location or privileges solely on the basis of such employee's status as an individual who is certified to use medical marijuana.”
Simply put, an employer cannot refuse to hire or discharge an employee solely based on the individual’s status as a medical marijuana cardholder.
Employer Protections. Employers do have rights to insure that someone with a medical marijuana prescription is performing his duties safely. These protections include:
- Not requiring the accommodation of the use of medical marijuana at the workplace
Not requiring the employer to commit an act that would put the employer in violation of federal law (including OSHA requirements)
- Permitting an employer to take action against an employee who is “under the influence” of medical marijuana while at work. However, the MMA is silent as to whether a positive drug test would be evidence of impairment given the prescription for marijuana use.
- Precluding an employee with more than 10 nanograms of active THC per millileters to operate or be in physical control of high voltage electricity
- Precluding an employee from performing duties at heights or in confined spaces
- Precluding an employee from performing tasks which the employer deems as life-threatening to the employee or others
- Precluding an employee from performing any duty which could result in a public health or safety risk
- Permitting an employee to undertake a task under the influence of medical marijuana which would constitute negligence
Employers are not required to put up with marijuana use at its work sites nor permit an employee to perform any duties that would cause federal liability or a safety risk to the employee or others. It is advisable when considering hiring an employee or retaining an employee who has a medical marijuana prescription to secure the written permission of the applicant/employee to request a written response from the applicant’s medical provider who prescribed the medical marijuana as to whether the applicant/employee can safely perform the essential job functions. If it is determined from information from the medical provider that the employee cannot safely or effectively perform the essential functions of the job, the employer may be able to better defend a claim that the applicant was not hired or the employee was terminated solely because it possessed a prescription for medical marijuana.
Disability Discrimination Claims. It has been understood that an applicant or employee could not successfully argue that an employer was discriminating against the employee based on a disability under the federal Americans with Disability Act (“ADA”) or be required to provide reasonable accommodation since the plain language of the ADA only protects drug treatments prescribed by a health care professional when those drugs are not explicitly banned by the federal Controlled Substance Act, like marijuana is.
An open question has been whether similar claims for disability discrimination could be raised under Pennsylvania’s Human Relations Act (“PHRA”) since medical marijuana is now legal. A Pennsylvania Commonwealth Court decision dated October 29, 2020 has held that no such claim is available under the PHRA. The Court reasoned that the PHRA definition of a “handicap or disability” does not include current or illegal use of a controlled substance as defined in the federal Controlled Substance Act. Marijuana is listed as a schedule I drug under that act. The court found that the use of medical marijuana pursuant to Pennsylvania’s Medical Marijuana Act is not a protected “disability” as that term is defined in the PHRA. A Lackawanna County Court of Common Pleas decision dated November 10, 2020 had a similar result indicating that there was no protection under the PHRA for medical marijuana use. Unless and until these decisions are changed by the Pennsylvania Supreme Court, or the Pennsylvania legislature, employers should not be subject to a discrimination claim under the PHRA for employment decisions or failing to make accommodations to employees with a medical marijuana prescription.
Unemployment Compensation. Recently, a former employee of the Pittsburgh Water and Sewer Authority was awarded unemployment compensation after he was terminated for testing positive for marijuana in a random drug test despite having a medical marijuana card. The Authority had a substance abuse policy which provided that employees could rebut a positive test result by verifying a prescription for any medication that triggered a positive result. The Authority cited to a section of Pennsylvania’s Unemployment Compensation Law that stated an employee was ineligible for UC benefits if the unemployment “is due to discharge…due to failure to...pass a drug test conducted pursuant to an employer’s established substance abuse policy…” The former employee was able to collect UC benefits because the Authority violated its own policy by not considering the medical marijuana prescription which caused a positive drug test.
Pennsylvania law concerning the ramifications of job applicants and employees having prescriptions for medical marijuana is in its early stages and continues to develop. Employers should review their substance abuse policies to accommodate the reality of job applicants’ and employees’ possession of medical marijuana prescriptions and their hiring policies to insure compliance with the Medical Marijuana Act and other relevant laws. Feel free to contact Tom Weiers at [email protected] with any questions concerning these issues.